Laratta v. Burbank et al

Filing 138

OPINION AND ORDER DENYING MOTIONS WITHOUT PREJUDICE AND DIRECTING SETTING OF TRIAL: The parties have submitted a Revised Proposed Pretrial Order (#133) sufficient to warrant setting this case for trial. The Court approves that Revised Propo sed Order. Within 7 days of this Order, counsel shall jointly contact chambers to schedule a prompt trial date for a four-day trial. Mr. Laratta's motions ( 130 , 131 ) are DENIED WITHOUT PREJUDICE. by Chief Judge Marcia S. Krieger on 10/5/15.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CHIEF JUDGE MARCIA S. KRIEGER
Civil Action No. 12-cv-02079-MSK-KMT
GIOVANNI LARATTA,
Plaintiff,
v.
SEAN FOSTER,
LYNN TRAVIS,
TINO HERRERA,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DENYING MOTIONS WITHOUT PREJUDICE AND
DIRECTING SETTING OF TRIAL
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to Mr. Laratta’s Motion In Limine
(# 130), the Defendants’ response (# 134), and Mr. Laratta’s reply (# 137); and Mr. Laratta’s
Motion for a Writ of Habeas Corpus Ad Testificandum (# 131), the Defendants’ response
(# 135), and Mr. Laratta’s reply (# 137). It also remains necessary to set this matter for trial.
The Court assumes the reader’s familiarity with the proceedings to date. In summary,
Mr. Laratta, an inmate in the custody of the Colorado Department of Corrections (“CDOC”),
proceeds to trial on a single claim under 42 U.S.C. § 1983 for retaliation based on the exercise of
First Amendment rights. Mr. Laratta alleges that he was subjected to prison disciplinary charges
based on his having filed a grievance accusing a corrections officer of sexually harassing him.
A. Motion In Limine
Mr. Laratta moves in limine to preclude the Defendants from making reference to his
criminal convictions, his disciplinary record during his incarceration, his current status as an
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inmate, and “any related security classification CDOC attributes to him,” on the grounds that
such evidence is more prejudicial than probative under Fed. R. Evid. 403. In response, the
Defendants state that they only intend to present the “name of the offense, the date of conviction,
and the sentence” for each of Mr. Laratta’s convictions. The Defendants argue that the fact of
Mr. Laratta’s felony convictions are necessarily admissible under Fed. R. Evid. 609 for purposes
of impeaching Mr. Laratta (assuming he testifies), that the nature of those convictions are
typically admissible to assist the jury in determining their probative value, citing U.S. v. Howell,
285 F.3d 1263, 1267-69 (10th Cir. 2002). As to the remaining issues, the Defendants give no
indication of what evidence they intend to present and instead request that the Court defer the
issue until such time as evidence is proffered at trial.
The Court denies the motion without prejudice. Determinations as to the prejudicial and
probative value of proffered evidence under Fed. R. Evid. 403 are questions that are almost
always ill-suited for pre-trial determination. Rare is the situation when the parties can assert and
the Court can determine, with confidence and specificity, the precise evidence that will be
presented, the exact manner in which it will be presented, and the pertinent context in which in
which it will be presented. These matters can best be addressed during trial, when the proponent
of the evidence is prepared to present it. Accordingly, the Court denies Mr. Laratta’s motion,
directs that the Defendants shall make no reference to the evidence at issue in this motion during
opening statements,1 and that the Defendants advise the Court at the point during trial at which
they are prepared to proffer the evidence. The Court will defer that issue until the next scheduled
break in the trial and will hear a proffer and arguments as to admissibility of the evidence under
Rule 403 at that time.
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For reasons set forth below, the jury will be advised of Mr. Laratta’s status as an inmate
at the outset of trial, and thus, his status as such is not encompassed by this Order.
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B. Motion for Writ
Mr. Laratta moves for a writ of habeas corpus ad testificandum, such that he would be
transferred from state custody to federal custody for the duration of the trial. He further requests
that he be allowed to appear in court in-person, in street clothes, and without restraints. The
Defendants take no particular position on the motion.
It is well-settled that inmates do not have a constitutional right to be physically present at
trial of a civil rights claim in which they are a party. See generally Twitty v. Ashcroft, 712
F.Supp.2d 30, 31 (D.Conn. 2009) (collecting cases). Unlike in criminal trials, there is no right
for Mr. Laratta to appear in street clothes or without obvious restraints. Indeed, whether to
permit the inmate to appear in person, or to facilitate the inmate’s appearance in some other way,
is a matter reposed in the sound discretion of the court. Id. In exercising that discretion, the
court must weigh various factors, including whether the inmate’s presence will substantially
further resolution of the case, security risks and logistical concerns, whether the action can be
stayed until the inmate’s release,2 and the extent to which reasonable alternatives to physical
presence exist. Id. at 32.
To be sure, there may be several salutary benefits that weigh in favor of Mr. Laratta
attending the trial in-person: he may see and be seen by jurors (especially for the purpose of
evaluating his credibility), he may freely interact with his counsel, and his presence in court
might enhance the abstract notion of the parties being on a “level playing field.” But, unlike the
situation posed in a criminal case, this matter is premised upon Mr. Laratta being a convicted
felon housed in a correctional facility. Therefore, his identity as such is not an inherent
prejudice to his cause. In addition, Mr. Laratta’s physical presence at trial creates logistical
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Mr. Laratta is not eligible for parole until 2017, and there is no certainty that he would be
paroled at that time.
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concerns that implicate both substantial cost and security issues, during transfer, while being
housed and at the courthouse.3
An alternative to physical presence during trial is to allow Mr. Laratta to appear by
videoconference from a CDOC facility. This approach is a substantial way of accommodating
his interest while mitigating cost and security concerns. There is no need for transport or
additional security if Mr. Laratta remains at the facility where he is currently housed. A full-time
video connection allows jurors to evaluate Mr. Laratta’s demeanor throughout the trial. Mr.
Laratta’s ability to communicate with his counsel during trial can be facilitated by a variety of
technologies, from real-time instant messaging to old-fashioned recesses to allow Mr. Laratta
and his counsel to communicate privately by telephone. The Court is confident that
comprehensive cautionary instructions to the jury can fully protect Mr. Laratta from any inherent
prejudice that might result from him not being physically present. Although these
accommodations do not necessarily provide all of the benefits that in-person appearance does,

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The predominant factor weighing in opposition to Mr. Laratta’s physical presence is the
issue of logistics. Mr. Laratta’s motion elides the precise mechanism by which Mr. Laratta’s
presence at trial will be achieved. Mr. Laratta’s brief makes a passing reference to CDOC
“transport[ing] the Plaintiff to Denver, where he can be housed temporarily in the CDOC’s
Denver Reception and Diagnostic Center,” which the Court understands to suggest that Mr.
Laratta would be transferred by CDOC officials to the federal courthouse each trial day, turned
over to U.S. Marshal’s Service personnel at the courthouse door, that Mr. Laratta would be
housed, fed, and supervised by Marshal’s personnel during the trial day, and would be returned
to CDOC officials at the courthouse at the conclusion of each trial day. Mr. Laratta assumes that
the Defendants’ lack of objection to his motion is the equivalent of CDOC expressing no
objection to such a proposal. This Court is not willing to make such an assumption, and would
require, at a minimum, an affirmative representation from CDOC (whether through an official or
through counsel) that CDOC does not oppose such an arrangement (including Mr. Laratta’s
request to be free of restraints during trial). More importantly, however, Mr. Laratta’s motion
gives no indication of the U.S. Marshal’s Service’s position on such a request, much less indicate
that Mr. Laratta has consulted the Marshal on this point. Because Marshal’s Service resources
will necessarily be consumed as part of this arrangement, and the security during the trial would
be maintained by the Marshal, the Court is not prepared to grant Mr. Laratta’s motion without
some indication of the Marshal’s position.
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the Court is sanguine that, on balance, they suffice to protect Mr. Laratta from undue prejudice
and ensure him a fair trial.
Accordingly, the Court denies his motion without prejudice.
C. Setting trial
The parties have submitted a Revised Proposed Pretrial Order (# 133) sufficient to
warrant setting this case for trial. The Court approves that Revised Proposed Order. Within 7
days of this Order, counsel shall jointly contact chambers to schedule a prompt trial date for a
four-day trial.4
Mr. Laratta’s motions (# 130, 131) are DENIED WITHOUT PREJUDICE.
Dated this 5th day of October, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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The parties request a five-day trial. Having reviewed the parties’ Pretrial Order and
witness list, the Court is confident that the matter can be fully tried in four days or less.
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